Certain family members of principal U nonimmigrant status (U-1 visa) holders, who are living either in the U.S or abroad, might be eligible to apply for green cards when the principal applicant does so—even if they were left out of the original application for U status or the relationship arose after it was granted. The technical term for this is that they adjust their status to lawful permanent resident (LPR).
This article covers the eligibility requirements for petitioning for permanent residence for a U-1 nonimmigrant family member.
The paperwork part of the process must be started by the U-1 nonimmigrant, so we'll address this discussion to that person and focus on the initial petition (the form that the U-1 holder must complete and send to USCIS requesting that the relative be granted LPR status).
If your qualifying family member meets all the qualifications discussed below, you can file Form I-929 Petition for Family Member of U-1 Nonimmigrant for your qualifying family member, along with supporting evidence and the filing fee ($230 as of late 2021) or fee waiver application. This starts the immigration process for that person.
If the I-929 is approved, your immigrating family member will then fill out Form I-485, Application to Register Permanent Residence or Adjust Status to U.S. Citizenship and Immigration Services (USCIS). For more information on this and other aspects of the process, see these articles on U Visas for Crime Victims Assisting Law Enforcement.
Filing an I-929 is more difficult than simply filing for a relative as a lawful permanent resident. However, there are some advantages: you can bypass potentially longer wait times for available visas and, most importantly, your family member can most likely obtain a green card even if they themselves are inadmissible to the United States.
There are five requirements that must be met before someone with U-1 status can petition for a green card on behalf of a family member:
Each of these requirements is discussed in more detail in the sections below.
Only U-1 nonimmigrants, meaning principal applicants who filed an original U visa application, can file an I-929 petition for family members. Derivative U visa holders cannot petition for their own family members to become U.S. LPRs.
USCIS wants to make sure that the principal applicant has adjusted status from U-1 status to a green card holder ("LPR") before granting status to that person's family members. Therefore, if you are a U-1 holder and are interested in filing an I-929 for a family member, you must wait until your AOS application is pending or has already been approved by USCIS. If your U status has lapsed before you adjust status, you cannot file the I-929 (though you can later, if USCIS approves your adjustment of status).
If you are a U-1 holder over 21 years of age (and, as mentioned above, you are in the process of adjusting status or have already obtained a green card), you may file an I-929 to help your spouse and unmarried children under 21 years of age receive U.S. residence. If you are under 21 years old, you may file an I-929 petition for your spouse, your unmarried children under 21 years of age, and your parents.
This procedure is not meant to help family members who had already received U nonimmigrant status (most likely by having been included on your original application) but whose U status was revoked or expired before they were able to file for AOS or an extension of their U status. Your spouse or qualifying family member must have never held any U nonimmigrant status before in order to apply for a green card through the I-929 process.
Who is this procedure meant to help? Primarily, relatives who either were omitted from the original U visa application; if for example your relative abroad was not in a position to join you in the U.S when you originally filed your U visa application; or relatives who only recently became qualifying family members, like a new spouse.
Remember that most of the family members for whom you could potentially file an I-929 petition, including your spouse, parents, and children, probably could have obtained U visas as your derivatives had the relationship existed at the time you filed your original U visa application. A common example of when one would file an I-929 petition, therefore, is if the person got married while in U-1 status but before applying for adjustment of status. Your relationship must exist at the time of your adjustment status and continue to exist through your adjustment process (for example, you cannot marry someone after applying for adjustment of status and apply for them).
To successfully petition for your family member, you must establish that either you or your relative will suffer extreme hardship if not allowed to stay in or enter the U.S. to join you.
USCIS evaluates extreme hardship on a case-by-case basis, considering the particular facts and circumstances. If the qualifying family member for whom you are applying is in the United States, you will have to demonstrate that removal of this person will result in a degree of hardship to you or to the person beyond that typically associated with removal.
USCIS takes into account the fact that you are applying as a crime survivor in assessing hardship to you and your family member. The agency will consider how you and your family member will be affected if you remain in the U.S. without your relative, as well as how your lives would be affected if you left the U.S. to join your relative in the event they are removed from this country or not allowed to enter the United States.
USCIS will consider a variety of factors when making an extreme hardship determination, including those that relate to you having been a victim of a crime. Some factors the agency will assess can include but are not limited to:
Furthermore, USCIS will consider any other relevant factors, so it's helpful to also include information about extreme hardship to your relative. Evidence of how long your family member has lived in the United States, medical issues they have, and treatment the relative receives in this country but might not have access to abroad, or fears they have of remaining in or returning to the home own country, are all examples of what might be relevant to showing extreme hardship to a family member.
USCIS can ultimately decide whether or not your relative deserves to have this petition granted. That's what is meant by this being a "discretionary" decision, as opposed to one where USCIS must approve the case if it meets the basic requirements.
In making a discretionary decision, USCIS will review your family member's file to determine whether there are any negative issues USCIS needs to take into account before granting the petition. If your relative has no negative immigration or criminal history, USCIS will likely exercise discretion favorably. However, you should still request that USCIS exercise discretion in the person's favor. To do that, you will need to include a signed statement by the family member along with evidence to establish your relative deserves this petition.
You do not need to establish that the family member is admissible to the U.S., as it is not a requirement for approval of the I-929 petition. Not having to show admissibility is one of the great benefits of applying for lawful permanent residence in this manner. Relatives who otherwise might not have any immigration relief available to them because they have multiple unlawful entries, for example, might still be eligible to obtain green cards through this process. USCIS will, however, consider any inadmissibility issues when determining whether to make a favorable exercise of discretion and approve the I-929. If the family member has inadmissibility issues or other adverse factors in their background, you will need to present evidence of positive equities that would offset these.
Depending on how serious the adverse factors are, USCIS might want to see evidence that denying the family member status would result in "exceptional and extremely unusual hardship" (as opposed to mere "extreme hardship"). If your family member has a serious criminal history; for example, has been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, multiple drug-related crimes; or is the subject of security or terrorism related concerns, USCIS is unlikely to exercise discretion in the person's favor.
Helping a family member who wasn't a derivative on the original U visa application obtain residence can be a complex process. This is especially true if the family member is considered inadmissible or has a criminal record or other adverse factors in his or her case. An experienced immigration attorney can help evaluate eligibility and prepare the necessary application materials.
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